BEVERLY HILLS AGENDA REPORT. Meeting Date: January 22, 2018 Item Number: E 7 To: From: Subject:

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1 BEVERLY HILLS D AGENDA REPORT Meeting Date: January 22, 2018 Item Number: E 7 To: From: Subject: Honorable Mayor & City Council Nancy Hunt-Coffey, Director of Community Services AGREEMENT BETWEEN THE CITY OF BEVERLY HILLS AND LUHRING AUGUSTINE, AS AGENT FOR TOM FRIEDMAN, FOR THE CREATION, SALE AND ASSIGNMENT OF ALL RIGHTS FOR THE ARTISTIC WORK ENTITLED TAKEAWAY APPROVAL OF A PURCHASE ORDER AND APPROPRIATION OF $680,000 FROM THE FINE ART FUND FOR THIS PURPOSE AND FOR ASSOCIATED INSTALLATION COSTS Attachments: 1. Agreement RECOMMENDATION Staff recommends that the City Council approve the agreement with Luhring Augustine Gallery and appropriate $680,000 from the Fine Art Fund to cover costs for the art piece entitled Takeaway by artist Tom Friedman, as well as the crating, shipping, storage, lighting, installation, and creation of a base for the piece. Fine Art Funds can only be spent for these types of art related purposes. DISCUSSION Tom Friedman is a world renowned American artist whose work includes sculpture and graphics. His works have been internationally exhibited in galleries and museums. Takeaway is made of polished stainless steel and is 13.5 feet tall. The piece depicts a figure running with boxes balanced atop its head. The sculpture is proposed to be installed on the southwest corner of the Rodeo Drive block of Beverly Gardens Park (Rodeo Drive and Santa Monica Blvd.). On October 4, 2016, the City Council conceptually approved the acquisition of Takeaway by Tom Friedman. The negotiations for this piece took longer than expected because the agreement needed to include provisions which properly protected the City s interests. While there was some resistance to certain terms in the agreement, the gallery and artist ultimately acknowledged the benefit of having a piece placed in Beverly Hills and agreed to the City s terms. Page 1 of2

2 Meeting Date: January 22, 2018 There are some provisions of the agreement which staff wanted to highlight. The Gallery has asked for a 9-month fabrication period, as opposed to the 6 months that was originally discussed. In this agreement, as has been the case with recent art acquisitions by the City, the City does not retain the copyright to this piece. However, the City has the right to make two dimensional representations of the piece (e.g. pictures) for noncommercial purposes without the permission of the artist. City retains the right to abandon, dismantle or destroy the work; however, the City must provide notice to the artist of its intent, and the artist shall have 60 days to accept the return of the work. At the October 2016 City Council meeting, the estimated total cost for the piece, including the crating, shipping, creation of the base, lighting, installation, etc. was $650,000: $600,000 for the piece itself and $50,000 for the other services. At this time, it is expected that the total project costs for will be $680,000 as a result of higher than expected shipping costs and increased contingency. Originally, this commissioned piece was going to ship to the City from Washington State; however, the fabrication services are now located in New York State, which has increased the shipping costs. Additionally, staff has found that with art installations, unexpected conditions can arise. As a result, staff recommends a 15% contingency, rather than a 10% contingency, for art installation projects, such as this one. FISCAL IMPACT City Council is asked to appropriate the funds from the Fine Art Fund as follows: $680,000 From: Fund 180, Fund Balance To: i1 Tatiana Szerwinski Nancy Hunt-Coffey 0 (I Approved By Approved By Page 2 of 2

3 Attachment 1

4 AGREEMENT BETWEEN THE CITY OF BEVERLY HILLS AND LUHRING AUGUSTINE, AS AGENT FOR TOM FRIEDMAN, FOR THE CREATION, SALE AND ASSIGNMENT Of ALL RIGHTS FOR THE ARTISTIC WORK ENTITLED TAKEAWAY THIS AGREEMENT FOR THE SALE AND ASSIGNMENT Of ALL RIGHTS [N AN ARTISTIC WORK (the Agreement ) is made and entered into as of this day of 201$ ( Commencement Date ), by and between the City of Beverly Hills, a municipal corporation ( City ) and Luhring Augustine ( Gallery ), an agent for Tom Friedman, ( Artist ). Section 1. Description of Work. Tom Friedman is an internationally known artist ( Artist ). The Artist shall design and oversee the creation of an original work of art made of stainless steel entitled, Takeaway, 2016, Edition 1 of 3 ( Work ) as set forth in Exhibit A ( Scope of Services ), attached hereto and incorporated herein by this reference. City shall acquire the Work from Artist. The Work shall be consistent with the approved rendering of the Work set forth in Exhibit A and shall result in a stainless steel sculpture measuring approximately 24 inches deep by 48 inches wide x 12 feet in height. Section 2. Artist s Schedule. It is estimated that the Artist shall complete the Work within nine months from receipt by Gallery of the first payment, as specified in Exhibit B, attached hereto and incorporated herein by this reference. Section 3. Artist s Fee. Artist agrees to sell, and City agrees to purchase the Work under the terms and conditions set forth in this Agreement and Exhibit A. The price for the Work shall be Six Hundred Thousand Dollars ($600,000 USD) ( Artist s Fee ), inclusive of a Seventy Thousand Dollars ($70,000 USD) nonreflindable design fee ( Design Fee ) to the Artist. The Artist s Fee and the payment schedule are more particularly described in Exhibit B. City shall not withhold applicable federal or state payroll or any other required taxes, or other authorized deduction from each payment made to the Artist. Upon payment, Artist shall sign a written acknowledgement of receipt of said monies and such document shall be incorporated in this Agreement. The Artist s Fee is exclusive of costs and expenses to be paid by City pursuant to the terms of the Agreement. Once the Work arrives at City s location of choice (the Delivery Location ) and City inspects the Work for its condition and whether it is the Work purchased under the Agreement, and accepts the Work in writing, City shall pay Gallery in accordance with Exhibit B. Section 4. Personnel. Artist agrees that he/she will be responsible for completing or overseeing all services in the Scope of Services and providing the personnel necessary for such services. Artist shall be responsible for the satisfactory performance of his personnel engaged in performing services required by this Agreement. Section 5. Term. This Agreement is effective as of the Commencement Date. Section 6. Right to Display. Artist hereby grants to City the right to publicly display the Work at the Northeast corner of Rodeo Drive and North Santa Monica Boulevard in B \202 I 7$4v6.doc 1

5 Beverly Gardens Park (the Site ). The Work may be relocated at City s discretion after providing written notice to the Artist. Section 7. Waiver of Certain Moral Rights. Artist acknowledges and agrees that City, in its sole and exclusive discretion, may abandon, dismantle or destroy the Work. City shall, however, provide notice to the Artist prior to any destruction of the Work and shall offer in writing to return the Work to Artist at Artist s sole expense. Artist shall have sixty (60) days from the dates of such offer to notify the City in writing of his/her desire to accept return of the Work, or if Artist does not so notify City, then City may destroy the Work. City may not permanently modify, alter, or change the Work except for conservation of the Work for structural or aesthetic purposes. Artist hereby waives his/her rights arising under the federal Visual Artist Rights Act, 17 U.S.C. sections 106A and 113 (d) ( VARA ) and the California Art Preservation Act (Cal. Civil Code section 987 et seq.) ( CAPA ) and any other state, federal or international law to the extent, and only to the extent that such laws conflict with the provision of this section. Artist waives no other rights arising under VARA, CAPA and any other state, federal or international law relating to an Artist s moral rights. Section 8. Replication of Work. The Artist acknowledges that the Work is from an edition of 3 with 2 Artist s proofs. Artist shall not reproduce the Work in identical form for commercial or non-commercial purposes. The Artist shall not install a work of art that is similar to the Work in a public space within Los Angeles County. Section 9. Artist s Rights. (a) The City shall, at its expense, prepare and install at the Site, a plaque, with input from the Artist, identifying the Artist, the title of the Work and the year of completion, and shall reasonably maintain such a plaque in good repair. (b) Artist or Gallery shall provide City with specific maintenance and protection instructions to and of the Work as described in Exhibit A. Gallery shall cooperate with City to address any and all maintenance requests of City. The parties recognize that maintenance of the Work is essential to the integrity of the Work. The City shall reasonably maintain the Work, taking into account the written maintenance instructions of the Artist. (c) The City agrees that it will not intentionally damage, alter, modifv, or change the Work except as authorized by the terms of the Agreement. (d) The City will not damage, alter, modify, distort, or change the Work without notifying Artist (or Artist s estate) and Gallery in writing as described in Section 7 of the Agreement. The Artist retains any and all intellectual property rights, including but not limited to, copyright and trademark, and all other rights in and to the Work except ownership and possession. Section 10. Warranty of the Work. Artist hereby warrants that the Work, including its anchoring piece, will be free of defects in workmanship (due to faulty design or fabrication), materials and finish, including inherent vice, and that the Artist shall, at the Artist s own expense, remedy, repair or replace any such defects in workmanship, materials and finish, including inherent vice, which appear within a \202 I 7$4v6doc -2-

6 period of ten years from the date the Work is installed and if necessary, replace the Work,. Inherent Vice shall mean a quality within the material or materials which comprise the Work which, either alone or in combination, results in the tendency of the Work, including without limitation the finish, to deteriorate. Section 11. City s Sole and Exclusive Ownership Rights. (a) Artist shall not retain ownership of or title to the Work. The parties agree that the title to the Work belongs to and is being sold and assigned to City for whatever use it desires, and that City does and shall at all times own, solely and exclusively, complete and unencumbered, all title in and to the Work, except intellectual property rights as described in Section 9. (b) Artist hereby grants to City the right to reproduce the Work in a two dimensional representation in any manner whatsoever for non-commercial purposes without further payment or approval of Artist. (c) Artist and City may make and use reproductions of the image of the Work as set forth in this Section. (i) City may, without the prior consent of Artist, make photographs and two dimensional reproductions of the Work for such uses as advertising, brochures, and media publications for the benefit of the City. Any other use of the image of the Work shall be subject to the prior written consent of the Artist and such consent shall not be unreasonably withheld or delayed. Artist agrees to execute, and authorizes Artist s legal representatives to execute, any documents or instruments requested by City to effectuate this grant of rights. (ii) Artist may use the image of the Work for any reason, provided that; (i) in each use, Artist shall include the following credit line unless requested by City not to do so in writing: Owned by the City of Beverly Hills ; (ii) Artist agrees not to use the image of the Work for any poster or other similar product that is intended for retail sale. Section 12. Transferability. All rights granted by Artist to City pursuant to this Agreement are fully transferable to others, by license or otherwise without further payment or approval of Artist. Section 13. City s Responsibility. (a) City shall reimburse Gallery for all costs, expenses and charges related to the transportation of the Work which Artist or Gallery shall procure from the fabricator in Rock Tavern, New York (the fabricator ) to City s Delivery Location. The transportation costs shall not exceed Twenty-five Thousand Dollars ($25,000 USD). Artist or Gallery shall arrange for the transportation of the Work from the Fabricator to the Delivery Location. The Artist, Gallery and/or fabricator shall not ship the Work to City without the prior written approval of City. (b) City shall be responsible for constructing the footing for the installation of the Work, and providing lighting for the Work, as specified by Artist and for all associated costs \202 I 784v6doc -3-

7 City shall also be responsible for installation of the Work which shall include overseeing the installation of the Work, and paying all expenses and costs of such installation. (c) City shall be responsible for and shall pay any and all costs, expenses and charges for and related to art insurance for the Work once City assumes the risk of loss pursuant to Section 15 of the Agreement as further defined in this section. 1. City agrees to keep the Work insured under City s art insurance policy (the Art Insurance ), for all risk of physical loss or damage for the value of Six Hundred Thousand Dollars ($600,000 USD) from the time the Work is accepted by City in writing and City takes possession of the Work at the Delivery Location.. 2. City shall name the Gallery as loss payee and Additional Named Insured on the Art Insurance and the City shall provide a certificate of insurance to the Gallery specifying the insurance coverage set forth herein. City agrees that should any insurance claim be made by City against City s insurance carrier or policy, under no circumstance will Gallery be responsible to City for reimbursement or payment of any insurance deductible amount and/or fee(s). (d) Safety. City shall be responsible for the safety precautions and for claims for personal injury or property damage on the part of any City person(s) or City related person(s) or City entity(ies) in connection with the installation of the Work, and for the acts or omissions of City s contractors, subcontractors or other persons or entities retained by or through City performing any tasks required for the installation of the Work and/or the failure of any contractor, subcontractors or any other persons or entities retained by or through City to carry out the provisions of their contracts. (e) City agrees to pay all applicable California sales and/or use tax. Section 14. Originality of Work. Artist represents and warrants that (i) the Work is and will be original to the Artist; (ii) at the time of transfer hereunder, Artist is the sole owner of the Work and of all rights therein including copyright, trademark and other proprietary rights therein; (iii) Artist is and will be the sole designer of the Work; (iv) Artist has and will have full and sufficient right to assign all rights granted herein and to waive all rights relinquished herein; (v) Artist is not under any obligation to transfer or sell any of the Work to any third party; and (vi) the Work does not and will not infringe any patent, copyright, trademark or other proprietary rights, privacy rights or other rights of any third party, nor has any claim (whether or not embodied in a legal action, past or present) of such infringement been threatened or asserted, nor is such a claim pending, against Artist or, insofar as Artist is aware, against any entity from which Artist has obtained any rights. Section 15. Risk of Loss. Artist bears the sole risk of damage to or loss of the Work to be produced by Artist pursuant to this Agreement until City accepts the Work in writing, and takes possession of the Work at City s Delivery Location. Artist or Gallery shall insure the Work for its Fair Market Value of at least Six Hundred Thousand Dollars ($600,000.00) against any loss or damage until such time as City assumes the risk of loss as set forth in this Section. Should the Work be lost or damaged after City assumes the risk of loss as described in this B \202 I 784v6doc -4-

8 section, City understands and agrees that City shall still pay the entire Artist s fee or any unpaid portion of the Artist s Fee within thirty (30) days of receipt of invoice from Gallery. Section 16. Artist s Commitment. Artist agrees that Artist shall not make reference to the Work produced under this Agreement in a way that reflects discredit on the City or the Work. Section 17. Addresses for Notices. Any notice, bills, invoices, demand or document which any party is required or may desire to give or deliver to the other hereunder, shall be in writing and may be delivered personally or given by facsimile or overnight courier service, postage prepaid, addressed as follows: To Artist: Tom Friedman, 116 Pleasant Street, Suite 227 Easthampton, MA Phone: tomfriedmanstudio@gmail.com and after the Artist s death to Artist s estate or the Gallery To Gallery: Tom Friedman, C/o Luhring Augustine 531 West 24th Street New York, NY F ax: To City: City of Beverly Hills, 444 North Rexford Drive Beverly Hills, California Attention: Director of Community Services Fax: (310) With a copy to: City Attorney City of Beverly Hills 455 North Rexford Drive Room 230 Beverly Hills, CA Fax (310) \202 I 784v6.doc -5-

9 (a) Either party shall have the right to designate a different address by written notice similarly given. Any notice, demand or documents shall be deemed received on: (a) the day of delivery if delivered by hand or overnight courier service during the party s regular business hours; or (b) Day of delivery if delivered by facsimile during the party s regular business hours. City assumes no responsibility to search for Artist if he cannot be reached at the address of record. Section 18. Termination. (a) City shall have the right to terminate this Agreement, with cause, upon ten calendar day s written notice to Artist. If terminated, Artist agrees to cease all work under this Agreement on or before the effective date of such notice. If such cause is a default by the Artist and upon notice this default is not cured within 15 days, any Artist fee paid to the date of receipt of the written notice of termination shall be refunded to City. (b) In the event of termination of this Agreement by City, due to no fault or failure of performance by Artist, Artist shall be entitled to the Seventy Thousand Dollar ($70,000 USD) Design Fee as well as return of the Work (or its component parts) if it has already been released to City. Section 19. Indemnification. City agrees to indemnify and hold Artist and his/her employees, representatives and agents harmless from any, and all loss, cost, damage and expense (including, without limitation, reasonable attorney s fees and expenses) arising out of or resulting from any act or omission of City (or any of its officers, employees, representatives or agents) constituting negligence, recklessness or willful misconduct in connection with (i) the installation of the Work, (ii) the governance and maintenance of the Site at which the Work is installed, and (iii) the de-installation or transportation of the Work if it is ever relocated by City. Notwithstanding the above, City shall not indemnify the fabricator of the Work in connection with its fabrication. Section 20. City Representative. The City Manager or his designee shall represent City in the implementation of the Agreement and has the authority to act on behalf of City in connection with the Agreement. Section 21. Attorneys Fees. In the event either party shall commence any action against the other party relating to this Agreement or for the breach of any obligation contained herein, the prevailing party shall be entitled to recover from the losing party reasonable attorneys fees, expenses, and court costs. Section 22. Prohibition against Assignment. Artist and Gallery shall not delegate, transfer, subcontract or assign his duties or rights hereunder, either in whole or in part, without City s prior written consent, and any attempt to do so shall be void and of no effect. City shall not be obligated or liable under this Agreement to any party other than Artist. B07$5-0001\ v6doc

10 Section 23. Successors and Assigns. The terms of this Agreement shall be binding upon and inure to the benefit of the respective heirs, successors in interest and assigns of the parties hereto. Section 24. Force Majeure. It is mutually agreed that neither party shall be held responsible for any losses resulting from the failure of the other party to fulfill any terms, conditions or provisions of this Agreement, if that party shall be delayed or prevented because of strikes, war, revolution, riot, civil disorder, terrorist activity, fire, flood, earthquake or any act of God. Section 25. Entire Agreement. This Agreement represents the entire integrated agreement between City, Artist, and Gallery and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both City, and Gallery. Section 26. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. Section 27. Headings. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. Section 28. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of litigation between the parties, venue in State trial courts shall be exclusively in Los Angeles County. In the event of litigation in a United States District Court, exclusive venue shall lie in the Central District of California. Section 29. Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. Gallery represents and warrants that it is authorized under the laws of this State to enter into this Agreement on behalf of Artist. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. CITY CITY Of BEVERLY HILLS, a municipal corporation LILI BOSSE, Mayor of the City of Beverly Hills, California \202 I 784v6doc -7-

11 ATTEST: BYRON POPE City Clerk (SEAL) ARTIST LUHRING AUGUSTINE, as Agent for Tom Friedman LAUREN W TELS Senior Director 4iI -1p JQi PçsotiT C oij z-/1-f OF ivi? APPROVED AS TO F RM: APPROVED AS TO CONTENT: LAURENCE S. WIENER City Attorney MAHDI ALUZR1 City Manager L HEUREUX DRES Interim Risk Manager B07$5-000 I \202 I 784v6.doc

12 EXHIBIT A SCOPE Of SERVICES Artist has designed the Work which shall be made from stainless steel with a brushed finish, a rendering of which is attached as Attachment 1 to this Exhibit A. The Work shall be fabricated by Workshop Art Services ( fabricator ) in Rock Tavern, New York. Artist shall be responsible for all costs of fabrication, including, but not limited to, the preparation of all construction documents, the purchase and transportation of materials and the cost of the actual fabrication. Gallery, at its cost, shall provide City with the Artist s installation, exhibition, and display instructions (the Installation Instructions ) to and of the Work. City understands and agrees that the Work shall be installed, exhibited and displayed pursuant to the Installation Instructions. Gallery, at its cost, shall provide City with engineering drawings and specifications for the Work, including a wind and earthquake study, drawings of the anchoring piece and footing ( Engineering Drawings ), lighting recommendations, and written detailed maintenance instructions for the Work (the Maintenance Instructions ). Prior to any payments being made to Artist, as more particularly detailed in Exhibit B of the Agreement, Gallery shall provide City with the Installation Instructions, Engineering Drawings, lighting recommendations and Maintenance Instructions. B07$5-0001\202 I 784v6.doc

13 Attachment I to Exhibit A z U >- a; LU (3 > FU \202 I 784v6doc 1O-

14 II OP9AV8L I ZO\ t 000-cgLoH

15 b 1 C Takway 2016, StainIes steel Edition 1/3, FrDm n edition of 3 with 2 artist s proofs, 144 x 48 x 24 inches (36S76 x x cm) Rendering of Takewayin Situ

16 C a Go to b C 0 Rs 0 i-a ON Takeaway 2016, Stainless steel, Edition 1/3, From an edition of 3 with 2 artist s proofs, 144 x 48 x 24 inches (36576 x x cm) Rendering of Takeawayin situ

17 w 0 -a 00 (11 e 0 0 rs 0 1%) S LUHRING AUGUSTINE 531 West 24th Street New York, NY tel fax nww.luhringangnstine.corn For further information, please contact Lauren Wittels Iauren@luhringaugustine.com

18 EXHIBIT B PAYMENT AND PAYMENT SCHEDULE City shall pay Artist Six Hundred Thousand Dollars ($600,000 USD), inclusive of the Seventy Thousand Dollar ($70,000 USD) Design Fee for the Work including sales tax, pursuant to the terms and conditions of this Agreement. Payment schedule: A. Upon execution of this Agreement and after Artist s or Gallery s submission to City of Engineering Drawings for the Work, including a wind and earthquake study, drawings of the anchoring piece and footing, lighting recommendations, Maintenance Instructions, and Installation Instructions, City shall pay Artist Two Hundred Thousand Dollars ($200,000 USD) to begin Artist s work, $70,000 of which is the nonrefundable Design Fee for the Artist. B. After completion of the Work at Fabricator s studio, delivery to the Delivery Location, inspection and acceptance of the Work by City at City s Delivery Location, City shall pay Artist Two Hundred Thousand Dollars ($200,000 USD). C. Within thirty calendar days of the installation of the Work by City, City shall pay the remaining balance of Two Hundred Thousand Dollars ($200,000 USD) to Artist and Gallery shall issue a Bill of Sale to City. B \202 I 784v6.doc -15-